CEDH · CASELAW;CLIN;ENG — 25 juillet 2019

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Germany - 1586/15 Judgment 25.7.2019 [Section V] Article 6 Article 6-3-b Access to relevant files Adequate time Preparation of defence Defence afforded sufficient time to acquaint itself with mass of telecommunication-surveillance data and electronic files: no violation Facts – The applicant, a senior manager of a major retailer for consumer electronics, was prosecuted and found guilty of taking bribes in commercial practice. During the investigation, around 45,000 recorded telephone calls along with 34,000 sets of other telecommunications-generated data were collected. Eventually transcripts were made of only 28 of the most important telephone conversations. In addition, out of a total of 14   million electronic files, 1,100 were considered relevant enough to be included in the paper investigation file. The applicant complained that his lawyer had not had a sufficient opportunity to acquaint himself with the entirety of the information collected by the investigator, or at least be able to identify the relevant data and files, in order to prepare the defence. Law – Article 6 §§ 1 and 3   (b) (a)     Access to the case file – Throughout the proceedings, the applicant’s lawyer had at all times had unrestricted access to the paper investigation file and any updates. Initial access was granted in November 2011. The trial started in June 2012 and lasted until December of that year. The applicant’s lawyer had therefore had the possibility to acquaint himself with the investigation file, regardless of the specific numbers of pages and volumes it comprised. This was all the more true as the applicant had had two other lawyers, who never requested access to the investigation file. Moreover, the possibilities of contact between the lawyer and the detained applicant had not been unduly restricted. Furthermore, whereas an enormous amount of telecommunication-surveillance data and electronic files had been collected during the investigation, only a relatively small number of files were eventually included in the paper file. Any data considered irrelevant were stored on police computers. In this connection, the prosecution and the courts had made use of neither the entirety nor a single one of the files on police computers and subsequently based neither the applicant’s indictment nor his conviction on them. Therefore the defence had been granted sufficient access to the paper file and afforded sufficient time to acquaint itself with the relatively extensive results of the investigation. (b)     Disclosure of the telecommunication-surveillance data – Following a request by the applicant, the prosecution and the domestic courts were prompt in deciding to allow disclosure of the entirety of the telecommunication-surveillance data. The applicant’s lawyer had been allowed to examine that data on the premises of the police, or in the prison where the applicant was detained, by appointment during regular opening hours and in the presence of a police officer, in order to protect the rights of all those whose conversations may have been recorded. The applicant had not specified in what particular manner the invoked restrictions had interfered with his opportunity to defend himself. In view of the complexity of the criminal proceedings in issue, it had not been necessary to allow an opportunity for the applicant’s lawyer to read through and listen to each and every single item of the telecommunication-surveillance data. Rather, it had, in principle, been sufficient to allow an effective opportunity for the applicant’s lawyer to analyse the recordings and text messages in order to identify and then listen or read those which he had considered to be of relevance. In this connection, the Court was mindful of the fact that modern investigation means could indeed produce, as in the present case, enormous amounts of data, the integration of which into criminal proceedings should not cause unnecessary delays to those proceedings. The applicant’s right to disclosure was not to be confused with his right of access to all materials already considered as relevant by the authorities, which would generally require for the possibility to comprehend the materials in their entirety. The police had been supportive and had provided the applicant’s lawyer with the data produced in respect of certain search parameters of his choosing and, subsequently, the lists containing substantial amounts of information on the retrieved data. It had indeed been possible to narrow down the search by looking for specific telephone lines, connections between specific telephone lines and the timing of telephone calls, thus allowing for a substantial reduction in the amount of data to only what was potentially relevant. Moreover, even though the appointments at the police and in the prison had been difficult to set, the applicant’s lawyer – who could have been expected to arrange for at least some shift in the emphasis of his work – had managed to examine the data on only twenty-two occasions over a period of more than one year, apparently never together with the applicant on the prison premises nor after 31   October 2012. At the same time, he had not made use of the possibility to have a litigation assistant replace him. Nor had the applicant’s two other lawyers engaged substantially in the analysing, listening and reading exercise. Another point is that the applicant would have known best what specific data to look for. It thus could not be said that the authorities had provided the defence with only an ineffective opportunity to identify the relevant files or that the applicant had had insufficient time to acquaint himself with the telecommunication-surveillance data. (c)     Disclosure of the electronic files – The lawyer could have accessed the entirety of the files on the premises of the police from the end of February 2012. He had first requested it on 3   April 2012; on 22   May 2012 the authorities provided the applicant’s lawyer with a copy of the files. That copy, however, could only be read by means of expensive software, which lawyers and private individuals normally did not appear to have at their disposal. The dispute concerning the question whether the State should bear the cost for the special forensic-data-analysis program, which was expensive, had revealed practical difficulties caused by the encryption of a large amount of data. It was only in July 2012 that the defence had asked to be provided with a copy in a format that was readable with software that was freely available on the internet, a request to which the authorities had agreed on short notice. The applicant’s lawyer had provided two hard discs at the end of July 2012, and the data were provided on 4   September 2012. The applicant had not specified in what particular manner the invoked restrictions had interfered with his opportunity to defend himself. The access had been sufficient in principle to allow an effective opportunity for the applicant’s lawyer to analyse the electronic files in order to identify those which he considered to be of relevance. The exact nature of the 14 million electronic files must have allowed for an initial identification of files with potential relevance to the criminal proceedings, thus making possible a substantial reduction in the number of files that actually needed to be looked at. Moreover, the electronic files must have stemmed from different people, including the applicant, giving him the best knowledge of their content, and covering a long period of time, thus allowing for a further reduction in the search parameters. The applicant’s lawyer, who could have been expected to arrange for at least some shift in the emphasis of his work, had had three and a half months to analyse the electronic files, which was sufficient time. The mere fact that the court proceedings had already begun when the lawyer was given a full copy of the file had not rendered the preparatory time insufficient. Article 6 §   3   (b) of the Convention did not require the preparation of a trial lasting a certain period of time to be completed before the first hearing. The question rather was whether the amount of time actually available before the end of the hearing had been sufficient. In the circumstances of the case the applicant had had sufficient time to acquaint himself with the electronic files. In conclusion, the proceedings, considered as a whole, had been fair. Conclusion : no violation (unanimously). (See also Mattick v. Germany (dec.), 62116/00, 31   March 2005, Information Note   73 ; and Sigurður Einarsson and Others v. Iceland , 39757/15, 4   June 2019, Information Note   230 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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